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New Citizens United sequel (UPDATED)

UPDATE 3:15 p.m.  Justice Kennedy has called for a response from the state of Montana by 5 p.m. on Wednesday, February 15.


The lawyers who pursued the case that led to the Supreme Court’s controversial ruling in 2010 freeing corporations to spend heavily on political campaigns asked the Supreme Court on Friday to overturn a Montana Supreme Court ruling that they argued defies the Court’s decision.   The state court ruling, the new filing argued, is so flatly contradictory to the Citizens United v. Federal Election Commission precedent that it should be summarily overturned.

The new document (American Tradition Partnership, et al., v. Attorney General of Montana, docket 11A762) is in the form of an application to put the state Supreme Court decision on hold pending a challenge in the U.S. Supreme Court, but it also asks as an alternative that the stay application be treated as a petition for review, that it be granted, and that the state ruling be overturned without briefing or oral argument.   The state court had refused on Tuesday to delay its ruling while an appeal went forward.  The application and motion were filed by attorneys for the the James Madison Center for Free Speech in Terre Haute, Ind., who also had initiated the Citizens United case.

At issue is a ruling by the Montana court on December 30, upholding a century-old state ban on the use of corporations’ own money to support or oppose any candidate in state elections.  One of the dissenters in the 5-2 decision predicted that the ruling would not withstand a challenge in the Supreme Court.  (The blog discussed the state court ruling in this post, providing a link to the opinion.)

The application and motion were filed with Justice Anthony M. Kennedy, who is the Circuit Justice for the part of the country that includes Montana — the Ninth Circuit.  It will be up to Kennedy to decide whether to act alone on the controversy, or to share it with his eight colleagues.

The Montana law at issue — the Corrupt Practices Act enacted by the states’ voters in 1912 — was interpreted by the state court as a flat ban on independent spending of corporations’ internal funds to support or oppose specific candidates for state office (independent in the sense that the financial effort was not coordinated with a candidate).  The measure thus was nearly identical to the ban in federal law that was struck down by the Citizens United ruling.

The Supreme Court, the state tribunal’s majority concluded, had left open the possibility that a “compelling interest” of the state would allow such a measure, and the majority found such an interest in the state’s past history and its present economic and political climate.

Three private corporations in Montana that want to spend funds independently in state elections urged Justice Kennedy, or the Court, to act swiftly, saying that “immediate relief is needed” because it is “vital that planning begin now for independent expenditures before the election.”

In suggesting that the full Court reach out and overturn the state decision without delay, the new filing argued that the state court’s “refusal to follow Citizens United” is such an obvious, blatant disregard of its duty to follow this Court’s decision that summary reversal is proper.”




Recommended Citation: Lyle Denniston, New Citizens United sequel (UPDATED), SCOTUSblog (Feb. 10, 2012, 1:56 PM),